Mandatory fines for offenders could unduly punish the poor

“You can’t squeeze blood from a stone, but the judges are being told: squeeze"

DAVID MURPHY

Nunavut lawyers say a change to a federal law requiring that convicted offenders pay fines to victim services programs could have dire consequences for impoverished families in Nunavut.

The amendment, passed by Parliament last October, says that any person found guilty of a crime must pay $200 for an indictable offence, $100 for a non-indictable offence, or 30 per cent of a fine imposed by a judge.

The victim surcharge has been around in some form or another since 1989, but until now, judges could waive the victim surcharge if they thought the convicted offender was too poor to pay. Not anymore.

“You can’t squeeze blood from a stone, but the judges are being told: squeeze,” said Rebecca Johnson, a law professor at the University of Victoria, who taught a two-week course at the Akitsiraq Law School Society in Iqaluit last summer.

The fines are intended for victim support services in Nunavut. The Government of Canada said in an April 2012 news release that, “raising the victim surcharge amounts will directly benefit victims of crime.”

But the real victims are the families of the convicted offenders who are left to pay the bill, Johnson said.

“It’s an interesting problem for the judge, because effectively, they’re imposing a fine on someone other than that person themselves, who is in fact responsible to pay,” she said.

“So it’s kind of criminalizing the family and friends who have done the act rather than the person.”

Nunavut’s legal aid group, Maliiganik Tukisiiniakvik, agrees.

They say the mandatory fine is in violation of the Charter of Rights and Freedoms — the right to life, liberty and security of person, and the right not to be subjected to cruel and usual treatment or punishment.

And taking away a judge’s right to waive the fine will cause harm to impoverished Nunavummiut, said defence lawyer Tamara Fairchild, in a written response to Nunatsiaq News on behalf of Maliiganik.

“This discretion has been completely taken away and will have a disproportionate impact on accused persons in Nunavut,” Fairchild said.

That’s because of high unemployment, “dismal” job prospects and an “exorbitant” cost of living, Fairchild said.

“We find it ironic that the poverty, deprivation, hunger, crowding, and lack of opportunity that contribute to criminality, will result in further economic deprivation because of these mandatory victim fine surcharges,” she said.

And there are little benefits for victims, Fairchild said.

“Indeed, in many cases, the people who will be harmed are the offender’s family members, who are often the victims of the conduct being sentenced.”

Not only that, Fairchild said she doesn’t know of any victims’ programs in Nunavut that are funded through these surcharges, even though they are supposed to be collected, retained and used in the jurisdiction in which the crime occurred.

“The stated intention of the amendments is to ensure that victim support services receive more funding, but to our knowledge, Nunavut has no criminal injuries compensation program such as those that exist elsewhere in Canada,” Fairchild wrote in her email.

She added that Maliiganik would support programs for victims, “given that Nunavut probably has more victims per capita than anywhere else in Canada.”

Nunatsiaq News made repeated attempts to contact Nunavut’s Department of Justice to ask about the victim surcharges, and the programs that receive the funds, but got no response.
As a result of being hamstrung by the new law, some Canadian judges are finding creative ways to implement it.

James Morton, a defence lawyer who works in Nunavut and Ontario, said he’s seen recent cases in Ontario where a judge gave a “trivial fine” of $5 instead of the mandatory $100 or $200 — so the accused is obliged to pay only 30 per cent of $5 as a victim surcharge.

In other cases, judges have given a convicted offender decades to pay off the fine.

Johnson said she isn’t surprised that judges across the country are trying to get around the surcharge.

“It kind of undermines your sense of what justice is when judges are required to do things that they know can’t produce an outcome,” Johnson said.

“No wonder they’re doing all this loopy stuff,” she said.

It’s unclear how judges feel about it in Nunavut, but Morton recalled one instance when a Nunavut judge ignored the victim surcharge altogether.

“I have seen situations where simply nobody raises the issue,” Morton said.

“That’s perhaps an oversight, or perhaps it’s a recognition that the victim fine surcharge is clearly unworkable — and simply ignores the problem.”

Morton said he once paid a victim surcharge of $200 himself for a client who was too poor to pay. But although Morton doesn’t agree with the “misguided piece of legislation,” ignoring the law doesn’t sit well with him.

“I have concerns in situations where the judge simply ignores the law. I understand why that’s done because the law is very foolish,” Morton said.

“But the law is the law. And it needs to be followed,” he said.

Barry McLaren, a Crown prosecutor in Nunavut, disagreed, saying judges aren’t skirting the law in Nunavut.

“I’ve seen reports in other parts of the country where judges have done things to indicate that they’re not in agreement with the program. So far as I know, that hasn’t happened here,” McLaren said.

“These surcharges are mandatory. On any sentence — probation or conditional sentence or even sent to jail — and the judges have been following the guidelines,” McLaren said.

Nunavut also has a “fine option program,” he said, which allows convicted offenders to pay off their fine through community service.

Since October, legal professionals and experts have been weighing in on the topic and media have been reporting stories of opposition.

Recently, one man in Ontario is challenged the law, saying it violates his Charter right to freedom from cruel and unusual punishment, and to equality under the law, the Ottawa Citizen reported.

Johnson said decisions by judges not to impose the surcharge, or to impose creative solutions, may trigger appeals, “but then the appeal will hopefully start the wheels of justice.”